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Mask Up: Mask Mandate Upheld by the Fair Work Commission

As we move towards “living with COVID” and the easing of restrictions, including the potential absence of public health orders in the workplace, employers will need to turn their minds to conducting risk assessments to determine the implementation of COVID-19 safety measures in the workplace.

What safety measures will be deemed “reasonably practicable”, will depend on a variety of factors affecting the workplace, making it crucial for employers to ensure that appropriate risk assessments are undertaken.

One safety measure that we anticipate is likely to be common or seen as a “reasonably practicable” safety measure is mandating masks in the workplace. However, employers will also need to ensure that any mask mandate is “lawful and reasonable”.

The Fair Work Commission (FWC) recently considered this issue in Jessica Watson v National Jet Systems Ltd [2021] FWC 6182 (Watson).

Facts

In response to the COVID-19 pandemic the Qantas Group, of which National Jet Systems Ltd (NJS) is part, mandated the wearing of face masks when performing duties as a cabin crew member in October 2020, subject to a medical exemption. Within days of this mandate, Ms Watson sought a medical exemption by providing NJS with a medical certificate and email from her GP, although the email stated that Ms Watson had “no medical condition of note”.

In January 2021, NJS adjusted the mask requirement for Ms Watson so she could wear a face shield instead of a mask. However, Ms Watson refused to wear a face shield or mask, as she found the face shield “uncomfortable”. NJS consequently removed her from flying duties and offered her other employment options, however Ms Watson rejected these options and did not attend work. Ms Watson also refused to attend an Independent medical examination (IME) requested by NJS to confirm whether she in fact required a medical exemption.

NJS subsequently wrote to Ms Watson confirming that she remained employed and asked whether she wanted to resign, advising that if she did not resign then she would again be directed to attend an IME.

Ms Watson resigned, but lodged a general protections application involving dismissal with the FWC claiming that she had been constructively dismissed by NJS.

Mask mandate was lawful and reasonable

Ultimately, the FWC was satisfied that NJS’ mandate that employees wear a face mask was a lawful and reasonable direction in the context of the COVID-19 pandemic.

The fact the mandate was made having regard to the risk of COVID-19 transmission, the potential consequences for a person who contracted the virus based on medical evidence and health authority guidance, as well as public perception all assisted in the FWC concluding the direction was lawful and reasonable. The FWC also placed an emphasis on the fact the mandate was implemented with an exemption process for employees.

The FWC also found that:

the direction for Ms Watson to attend the IME and return to work was also lawful and reasonable;
there was insufficient medical evidence to conclude that Ms Watson had a medical condition for which an exemption would apply;
NJS engaged in reasonable management action;
Ms Watson had voluntarily resigned after considering her options and therefore had not been dismissed for the purpose of her general protections claim.

The FWC dismissed Ms Watson’s general protections application.

Key takeaways for employers

The Watson decision confirms that there may be certain circumstances in which an employer may lawfully and reasonably require employees to wear a mask at work.

However, employers will need to ensure that an appropriate risk assessment is conducted to determine whether any mask mandate is reasonable and if any such mandate is supported by the risk assessment.

Relevant considerations will include the following:

whether there is any applicable public health order, or government or health advice;
the status of the COVID-19 pandemic, including any outbreaks or risks transmission;
including an exemption process for employees;
whether any other reasonable adjustments can be made or offered;
if it a reasonable requirement of a person’s role.

For further information and advice for your business or assistance conducting your workplace risk assessments, our employment law team is available to assist. Please contact Lisa Berton or Nick Noonan with any queries.

This information is general in nature and based on the facts and circumstances known as at the date of publication. This information may need to change based on legislative, governmental and other changes or developments which occur with respect to the COVID-19 pandemic. If you require further information or specific advice in regards to your business, please let us know.